Disrespect for precedent can be respect for the constitution
© Greg Nash

After Donald TrumpDonald John TrumpMueller report findings could be a 'good day' for Trump, Dem senator says Trump officials heading to China for trade talks next week Showdown looms over Mueller report MORE’s surprise electoral college win, Democrats scrambled to “golden oldie” strategies for derailing his potential Supreme Court nominations—demanding that nominees be “in the mainstream” and “follow precedent.” Unfortunately, those demands would disqualify any nominee who respects the Constitution.

Constitutional law is supposed to be different from other types of law. But liberal interpreters of the Constitution have trampled the distinction.

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In common law, later rulings carry more precedential weight than earlier rulings in order to maintain the continuity of people’s legitimate expectations. Similarly, later legislation can change earlier laws. But the Constitution is supposed to remain “the supreme law of the land.” Later deviations are not to create new precedents that effectively rewrite it.

Nowhere is the distinctiveness of constitutional law made clearer than in Alexander Hamilton’s Federalist 78: “Courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.” How is that so? Through their duty “to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” In particular, when legislation “stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

What Hamilton called “the duty of the judicial tribunals … to guard the Constitution and the rights of individuals” was echoed by James Madison, regarded as the father of the Constitution, in addressing the House of Representatives in 1789: “Independent tribunals of justice will consider themselves … guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”

In other words, the Supreme Court must actively maintain constitutional rights against overreaching by the other branches of the federal government. That maintenance requires that later precedents which diverge from the Constitution are not allowed to preempt it.

However, the progressive “living Constitution” approach has turned our Founders’ approach of strictly and expressly limiting federal authority on its head. Divergent precedents are substituted for the Constitution and effectively become the “new and improved” highest law of the land. And those who like the results subsequently try to cement them in place by demanding allegiance to those precedents from then on.

That is why the distinction between the role of precedents in constitutional law and other types of law is critical. Should we be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the answer is the latter, and the Constitution can easily be changed by innovative judicial interpretations rather than through the difficult amendment process spelled out, then the Constitution cannot be the highest law of the land in practice.

Further, if the Supreme Court must defer to earlier precedents, there is no respectable defense for those activist rulings liberals now so desperately defend, since those rulings clearly deviated from earlier constitutional understanding.

Principled interpreters of the Constitution do not advocate overturning precedents that protect citizens from government abuse, which was the primary purpose of the Constitution. That is the essence of what those interpreters wish to sustain and recover where lost. But doing so requires overturning laws and precedents blatantly inconsistent with the Constitution, to reinstate those rights and protections that have been eroded since it was written. Such disrespect for precedent is real respect for the Constitution.

Democrats are resurrecting their “out-of-the-mainstream” and “respect for precedent” assertions against potential Trump judicial nominees because those assertions sound principled. They are not. They are merely a focus-group-polished version of “We will only accept judicial nominees who share our 'living Constitution' view and will accept every unconstitutional precedent we like, rather than following the actual Constitution.” Stripped of the rhetorical camouflage, it is an ugly assault on individual rights and liberties that would be opposed by anyone who recognized that their constitutional guarantees were being put in the crosshairs.

Gary M. Galles is a professor of economics at Pepperdine University and a research fellow at the Independent Institute. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).


The views expressed by authors are their own and not the views of The Hill.